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SUNY Downstate Health Sciences University

Office of Research Administration

Research Compliance - Export Control

Export controls are U.S. laws and regulations that regulate and restrict the release of critical technologies, information and services to foreign nationals both within and outside of the United States and foreign countries for reasons of foreign policy and national security.

For the purposes of these laws, the term ‘export’ covers a broad range of activities that include the export of products, services and information. An export occurs when there is a transfer to any non-U.S. person either within or outside of the U.S., controlled commodities technology or software, by physical, electronic, oral or visual means with the knowledge or intent that the items will be shipped, transferred or transmitted outside of the U.S. under export laws.

For national security and foreign policy reasons, the U.S. maintains comprehensive controls and sanctions on the export and re-export of U.S.-origin goods and technology to all destinations around the world. There are several government agencies that regulate export control, depending on the nature of the goods to be exported or the country of final destination. Each of these agencies have their own set of rules and regulations as described below.

The ways in which Downstate may find itself involved in export:

  • Collaborating with foreign colleagues, including foreign students participating in research involving export-controlled technology
  • Presenting controlled information at a conference
  • Traveling with a laptop overseas
  • Providing controlled technology in proposals or other correspondence
  • Shipping equipment or material to a foreign country
  • Providing foreign nationals access to controlled information, including training on export-controlled equipment
  • Working with a foreign country/foreign national subject to U.S. embargo
  • Hiring a foreign national on an H1B visa

 The following are examples of export:

  • To send a part through U.S. mail or freight carrier or carry an item in carry-on luggage
  • Disclose controlled technology to a non-U.S. person within the U.S. or abroad (including emails, telephone conversation, technical proposals, sharing of computer database, training session)
  • Re-export items/information whereby an item or information is transferred to a foreign person who ‘re-exports’ the item/information to another country (U.S. regulations follow the exported item/information wherever it goes)
  • Provide a Defense Service. ITAR defines this as providing assistance (including training) to a foreign person in the U.S. or abroad in the design, manufacture, repair, or operation of a defense article, as well as providing technical data to foreign persons. Defense services also include informal collaboration, conversations, or interchanges concerning technical data.*

For the purpose of universities and institutions of higher education, most funding to support military and defense sensitive materials comes from procurement contracts from either a corporate entity or a federal military sponsor via a procurement contract. Therefore, the same rules apply as if Downstate was a company for the purpose of these regulations. If no exclusions apply, any item on the regulations from EAR and/or ITAR requires a license to export.

 

Do I need an Export Control License?

Export Control Decision Tree »

 

What are the first steps a PI can do to identify export control?

Prior to traveling abroad (see Sanctioned Countries), collaborating with Foreign Nationals (see Restricted Parties List), including volunteers and/or students, submitting an application and/or establishing an award account, the following questions should be addressed:

  • Will anything be shipped internationally?
  • Will anything be shipped domestically where it will eventually end up in a foreign country?
  • Will there be collaboration with colleagues in foreign countries?
  • Will training be provided to foreign nationals (including students)? Will the training be on the use of equipment and/or software?
  • Does the sponsor require prior-approval rights over publications (i.e. over the “standard” practice in a multi-site clinical trial or human subject research?)
  • Does the sponsor require prior approval regarding the hire and/or participation of employees and/or foreign nationals, including students?
  • Do travel arrangements include international travel? What is the purpose of the travel?
  • Is the international travel to a country on the U.S. sanctioned countries list?
  • Conference attendance or presentation of data at a conference is open to all researchers, regardless of citizenship, religion, country, etc., meaning there are/are not restrictions on attendance/participation.

It is important to note that a discussion with a foreign national in the United States or a person “acting on behalf of a foreign person,” constitutes an “export” if it reveals technical information regarding export-controlled technology.

If you answered “yes” to any of the above, a license may be required. Please note that license applications take considerable time and effort and getting one may take many months. Please plan accordingly. Please contact Sharon Sealy in the Sponsored Programs Office.

 

DO YOU NEED AN EXPORT CONTROL LICENSE?

Exemptions/Exceptions to the requirement for obtaining a license for the purpose of export

  1. Fundamental Research is research that has no restrictions for proprietary or national security reasons. The majority of academic research at Universities is fundamental research. Published information, technological or otherwise, is not subject to the Export Administration Regulations (EAR) (except for encryption object code and source code) and therefore not subject to the EAR and does not require a license.
  2. Items that fall under EAR99. These are items subject to the Export Administration Regulations (EAR) but not listed with a specific Export Control Classification Number (ECCN) on the Commerce Control List (CCL). These items, designated as EAR99, generally consist of low-technology consumer goods and do not require a license in most The classification describes the item itself and the authorization for the shipment (the actual transaction may change this to a required license).
    For example, you may be required to obtain a license if your export of an EAR99 is to an embargoed country, an end-user of concern or in support of a prohibited end-use.
  3. Exceptions/Exclusions to the International Traffic in Arms Regulations (ITAR) United States Munitions List (USML). The State Department can issue exemptions to that one rule, and there are existing exemptions established for specific purposes. There are certain countries that currently have standing agreements with the U.S. that apply to ITAR – Australia, Canada, and the U.K., for example.

What You Should Know

  1. Export-Controlled Information applies to all activities that fall outside the definition of Fundamental Research.
  2. A license is required based on the regulations of EAR, ITAR, OFAC and others, unless a clear exemption exists.
  3. The possessor (i.e. Principal Investigator) of ‘export-controlled information’ MUST deny the opportunity for access to foreign nationals or any unauthorized person. Records must be maintained for all exports of items on the Department of Commerce’ Commerce Control List for a period of at least two years. Records of the export of items listed on the ITAR must be maintained for five years.
  4. Record-keeping is key! Keep track of an exemption/exception log to show all of your shipments and/or transactions! This log should incorporate the following information:
    • Date of Shipment; Exemption/Exception claimed;
    • U.S. government jurisdiction (EAR/ITAR);
    • Which list the item falls under: United States Munition List (USML - under ITAR) or the Export Control Classification Number (ECCN - under EAR)
    • A description of what has been shipped, emailed, face-to-face meeting, hand-carry, etc.
    • Information on the end-user
    • Country
    • Type of export (i.e. hardware, technical data, etc.)
    • Value of the item
    • The export method (i.e. email, shipment, hand-carry, face-to-face meeting, etc.)

Export-controlled information may be uploaded onto an Internet web site only if access to the site is limited to a specific target audience that is authorized to have the information and the information is encrypted. See Pre-Publication Review of Web Site Content.

This research differs from fundamental research. It is defined as proprietary research, industrial development, design, production and product utilization, the results of which are restricted for proprietary and/or specific national security reasons. Unlike fundamental research, this research may have restrictions not only on the outcome of the research but also the methods used during the research. Additionally, research involving materials or equipment specifically designated for military application and biological weapons are restricted.

Department of Defense

Department of Defense technical data, subject to export controls, must be safeguarded as described in Technical Data.

One objective of the ITAR and EAR is to prevent foreign citizens, industry or governments, or their representatives from obtaining information that is contrary to the national security interests of the United States. All documents that contain export-controlled technical data must be marked with the following warning:

WARNING - This document contains technical data whose export is restricted by the Arms Export Control Act (Title 22, U

When export controls apply

Either an export license will need to be obtained through Sponsored Programs Office, document an express determination and an exception to the licensing requirements apply and/or document a determination that no license is needed.

Export Control Penalties

Penalties for violation of export laws are severe, and can involve civil and criminal penalties for both the University and individuals. Criminal violations of EAR carry potential penalties of the greater of $50,000-$1,000,000 or five times the value of the export, and up to 10 years of imprisonment; civil penalties include fines of $10,000-$120,000. Criminal violations of ITAR can entail fines of up to $1,000,000 and up to 10 years' imprisonment; civil penalties include fines of up to $500,000.

International Travel and Export Control

  1. An export control license may be required when items are hand-carried or shipped outside the United States.
  2. Travel for faculty and staff outside of the U.S. to conduct research and collaborate with an international collaborators, which generally falls under the definition of fundamental research, does not require an export control license.
  3. Tangible exports of equipment, materials and laptops plus intangible exports of commercial software, encryption code and disclosure-restricted technical information are subject to export control regulations.
  4. The dual-use travel (under the EAR) with computer equipment (i.e. laptops, tablets, phones, etc.) containing research data, where the data is intended for public disclosure, is allowable provided there is an “effective control” in place. Any unpublished data, that will be in the public domain, may be carried abroad at your own discretion.
  5. Any computer data with PHI and/or proprietary information or controlled technical data may NOT be taken abroad, nor shared with any person of non-U.S. citizenship without a license, unless it meets one of the exceptions.
  6. Examples of data that should be left on campus or afforded exceptional protection include information that might be construed as sensitive by the host government and any non-public data. The State Department lists travel advisories and should be checked for foreign governments that have restrictions.
  7. To avoid the loss of a person computer, it is highly recommended that all data remain on a Downstate server and the only data available on a personal computer or electronic is specifically what is being presented on or worked on that is in the public domain or will be.
  8. A license may be required when items under certain circumstances and the license must be in place prior to international travel and/or shipping or hand-carry of items based on certain criteria.
  9. Two License Exceptions are available for the Downstate community when the tangible export of items and software containing encryption code like laptops, PDAs, and cell phones is necessary for travel or relocation:
    • License Exception TMP (Temporary Exports) allows those departing from the US on university business to take with them as "tools of the trade" Downstate-owned or controlled, retail-level encryption items such as laptops, smartphones, and encryption software in source or object code to all countries except Cuba, as long as the items and software will remain under their "effective control" overseas and are returned to the US within 12 months or are consumed or destroyed abroad;
    • License Exception BAG (Baggage) allows individuals departing the US either temporarily (travel) or longer-term (relocation) to take with them as personal baggage family-owned retail-level encryption items including laptops, smartphones, and encryption software in source or object code. The encryption items and software must be for their personal use in private or professional activities. Citizens and permanent resident aliens of all countries except Cuba, Syria, North Korea and Iran may take with them as personal baggage non-retail "strong" encryption items and software to all locations except embargoed or otherwise restricted locations.

Federal Regulations and the Government Agencies responsible for the rules and oversight governing Export Control

Many government agencies have a role in governing export and export control.

The ones identified below are the ones we work with to manage and safeguard export and re-export of materials and information:

  • The U.S. Department of Commerce, Bureau of Industry and Security (BIS) administers the U.S. export control policy through the Export Administration Regulations (EAR).
  • The U.S. Department of State is responsible for the International Traffic in Arms Regulations (ITAR).
  • The U.S. Department of Treasury is responsible for overseeing the Office of Foreign Assets Control (OFAC).
  • The Securities and Exchange Commission (SEC), jointly responsible with the Department of Justice, enforces the Foreign Corrupt Practices Act (FCPA) of 1977. These regulations cover “anything of value” which is broadly defined and may include cash, gifts, payments of travel expenses, loans, charitable contributions, financial aid or scholarships, titles of honor and more. An “unfair advantage” might include influencing an official act or decision, obtaining or retaining business or funding, ensuring the lack of prosecution for illegal activity, securing special tax or customs treatment and more.
  • The Department of Justice monitors and enforces Restricted Parties Lists for specially designated nationals and countries.
  • The Department of the Interior – U.S. Fish and Wildlife Service oversees and enforces the import and export of wildlife or wildlife products. This includes businesses and individuals engaged in commerce; Animal dealers, animal brokers, pet dealers, or pet or laboratory suppliers; Trade show participants displaying wildlife products; Collectors or hobbyists involved in commercial activities; Commercial laboratories, researchers or biomedical suppliers; Circuses and animal shows; Scientific institutions and Academic institutions.

 

 

* Technical Data means any information for the design, development, assembly, production, operation, repair, testing, maintenance, or modification of a defense article. Technical Data may include drawings or assembly instructions, operations and maintenance manuals, and email or telephone exchanges where such information is discussed.  Sometimes it is easier to define Technical Data by what it is not: Technical Data does not include general scientific, mathematical, or engineering principles commonly taught in schools, information present in the public domain, general system descriptions or basic marketing information on function or purpose.

** A non-resident alien is someone who is defined as not being a U.S. citizen but possesses a green card for permanent residence in the United States. For the purpose of export control regulations, such an individual is a “U.S. person” and can be allowed access to export-controlled information without an export license. If the export-controlled information is classified, the regulations for release of classified information still apply.

  

We would like to acknowledge and thank Stanford University for the
general design and content of the decision tree and this page.